ILLINOIS MUNICIPALITIES
and the JUDICIAL AMENDMENT
by LOUIS ANCEL and JACK M. SIEGEL of the Chicago Bar

LIKE MOST good citizens, Illinois municipal officials and other persons concerned with local government in this State recognize the need for modernization and improvement of our court system which has remained virtually unchanged since 1870. They are thus vitally interested in the proposed judicial article amendment which would replace present Article 6 of the Illinois Constitution, if adopted by the electors of the State in November of this year. However, in the flood of comment and propaganda advanced by the advocates and opponents of the proposal, too little attention has been given aspects of importance to municipalities.

The basic objective and major points of the proposal have been frequently and fully discussed elsewhere, therefore no attempt will be made here to discuss the merits of an integrated responsible court system with broad administrative power vested in the Supreme Court, the establishment of a separate Appellate Court, the changes in jurisdiction and other technical matters which have been treated fully by competent analysts.¹ Rather, we shall examine those features of the proposal of particular relevance to municipalities.

The proposed article was approved by two-thirds of the General Assembly on June 27, 1957 and has the support of the Illinois and Chicago Bar Associations, Governor Stratton, Mayor Daley of Chicago, and an impressive list of State-wide organizations.² It is generally agreed that the article will reduce the backlog of cases, speed up the judicial process and improve the efficiency and quality of the administration of the justice in the State. Municipal officials, however, have not generally realized the impact that the court reorganization will have on municipal affairs.

Local courts will be immediately affected in that all justice of the peace courts, police magistrate courts, city, village, municipal courts, County courts and probate courts will be abolished and all their jurisdiction, judicial functions and powers will be transferred to the local Circuit Court.³ The State will be divided into judicial circuits, each consisting of one or more Counties, and the Circuit Court will be the only trial court in the State and have unlimited original jurisdiction.⁴ Justices of the Peace and Police Magistrates will continue in office until the expiration of their terms, and be magistrates of the several Circuit Courts.⁵ Until otherwise changed by the General Assembly, cases assigned to magistrates shall be those within the present jurisdiction of Justices of the Peace and police magistrates.⁶ Subject to the completion of terms by sitting justices of the peace and police magistrates, the circuit judges will appoint magistrates to serve at their pleasure.⁷ There will be no fee officers in the judicial systems,⁸ and the judges and magistrates will receive salaries as established by law. All (Continued on next page)

EDITOR'S NOTE: The Illinois Municipal League has taken no action concerning the judicial amendment. This article does not represent League Policy but is published for the information of Illinois City and Village Officials, and represents the viewpoint of the authors only.

(SEE FOOTNOTES ON NEXT PAGE)

September 1958 / Illinois Municipal Review / Page 207

ILLINOIS MUNICIPALITIES

salaries and expenses will be paid by the State, with the exception of salaries in Cook County which may be supplemented by the County."⁹

These provisions having to do with the abolition of the offices of Justice of the Peace and Police Magistrate have caused the most concern for municipal officials and have inspired organized opposition on the part of associations of Justices and Police Magistrates. Apart from the natural reluctance of these officers to give up fee-paying positions, and to rely on appointment by the Circuit Judges rather than popular election, municipal officials may properly have other important questions to ask about the consequences of this proposal.

One important question concerns the disposition of revenues derived from the magistrates courts. Under the existing system, the income derived from the police magistrates courts and the Justices' Court in ordinance violation cases may constitute an important source of municipal funds.¹⁰ While municipal officials may not be concerned with the personal financial well-being of Justices of the Peace and Police Magistrates, if these funds are to be lost to municipalities, an unselfish dedication to judicial reform can hardly be expected from those who are constantly struggling to make ends meet with inadequate revenues.

Another important question concerns the principle of "Home Rule", so dear to the hearts of most of us. Does the proposal to do away with the courts of the Justices of the Peace and police magistrates and substitute for them, magistrates appointed by the circuit judges, mean that local cases are to be heard by "outsiders" or "carpet baggers" who are likely to be unfamiliar or unsympathetic to the problems of the local community? Related to this, is the question of the availability of courts when and where needed.

Finally, and possibly the most important question is, what will be the effect of the proposal on the enforcement of local ordinances, both in terms of the quality of the decisions rendered and the cost to the municipality?

These are legitimate questions which deserve thoughtful appraisal by municipal officials in arriving at a judgment as to the merits of the proposal for judicial reform. They shall be considered in turn.

What Happens to Municipal Revenues from Ordinance Violations?

The best available figures indicate that there are approximately 3,800 Justices of the Peace and 500 Police Magistrates in the State.¹¹ Included within their jurisdiction, which is made uniform by the Constitution,¹² are ordinance violations. In statutory language, actions "arising under the laws for the incorporation of cities, towns and villages, or any ordinances passed in pursuance thereof and actions by and against incorporated towns, cities, villages, or other municipal corporations, which, if brought by an individual, might be brought before a justice of the peace".¹³ The Cities and Villages Act further provides: "All justices of the peace and police magistrates shall have jurisdiction within the county in which they are elected to office in all cases arising under this Act or any ordinance passed in pursuance, thereof."¹⁴ This jurisdiction will be transferred to the magistrates appointed by the Circuit Judges under the proposed new judicial article.

It should be noted that the establishment of the office of police magistrate is discretionary with the municipality,¹⁵ and ordinance violations may be brought before a justice of the peace even if a magistrate is sitting. The fees to be paid Justices of the Peace and Police Magistrates are the same and have been prescribed by statute.¹⁶ It is permissible, however, for a municipality to provide by ordinance for a salary for a police magistrate and clerk with the fees (costs) accruing to the municipality.¹⁷

The law specifically provides that fines collected for ordinance violations shall go to the municipality. The Cities and Villages Act is explicit:

"All fines, penalties, and forfeitures for the violation of ordinances, when collected, and all other money collected for a municipality shall be paid into the treasury of the municipality, at such times and in such manner as may be prescribed by ordinance."¹⁸

By far the greatest amount of revenue from ordinance violations is derived from traffic cases. In addition to the provisions of the Cities and Villages Act already cited, the Motor Vehicle Act makes specific provision for the payment of fines to

1. See for example: Cedarquist. "For the Proposed Judicial Amendment," Chicago Bar Record, December, 1957; "Trumbull, "Why Lawyers Should Support the Judicial Amendment," Illinois Bar Journal, February, 1958; Cohn, "The Illinois Judicial System under the Proposed Judicial Article," Illinois Bar Journal, (Supplement), March, 1958, (a thoughtful analysis by a distinguished opponent of the proposal).

2. Including among others the Illinois State Chamber of Commerce, the Illinois Agricultural Association, the Illinois Manufacturer's Association, the Illinois Home Bureau Federation, and the Illinois State Industrial Union Council AFL-CIO. The campaign for the new judicial article is being coordinated by the Committee For Modern Courts with offices in Decatur and Chicago.

3. Proposed Judicial Article, Schedule, Paragraph 6.

4. Ibid, Section 9, Section 10. 6. Ibid, Schedule, Paragraph 4.

6. Ibid, Schedule, Paragraph 9.

7. Ibid, Section 12.

8. Ibid, Section 9.

9. Ibid, Section 16.

10. The Village of Maywood, for example, derives approximately $30,000 a year from the operation of its Police Magistrate's Court. The income from municipal courts such as those in Evanston and Oak Park in Cook County and the various city courts is a very substantial item, and many smaller municipalities also receive relatively important funds from ordinance fines, particularly traffic violations.

11. Trumbull, op. cit., p. 11.

12. Article VI, § 21, of the Illinois Constitution of 1870.

13. Ill. Rev. Stats., 1957, Ch. 79, § 16. Where municipal or city courts have been established, such courts also have jurisdiction over ordinance violations.

14. Ill. Rev. Stats., 1957, Ch. 24, § 10-9.

15. People ex rel. Wellman v. Washburn, 410 Ill. 318; Ill. Rev. Stats., 1957, Ch. 24, § 9-73.

16. Ill. Rev. Stats., 1957, Ch. 53, § 59.

17. Ill. Rev. Stats., 1957, Ch. 63, § 69.

18. Ill. Rev. Stats., 1967, Ch. 24, § 10-7.

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municipalities for all traffic offenses where arrest and prosecution is carried on by municipal officers. Section 335 provides:

"335. § 138. Disposition of fines and forfeitures. (a) Fines and penalties recovered under the provisions of this Act shall be paid over and used as follows: 1. For offenses committed upon a highway within the limits of a city, village or incorporated town or under the jurisdiction of any park district, to the treasurer of the particular city, village, incorporated town or park district, if the violator was arrested by the authorities of the city, village, incorporated town or park district, provided the police officers and officials of cities, villages, incorporated towns and park districts shall reasonably prosecute for all fines and penalties under this Act."¹⁹

These statutory provisions relating to fines are of course completely independent of the offices of Justice of the Peace and police magistrate. They will remain in effect regardless of whether the new Judicial Article is adopted or not. There is nothing in that article which in any way affects the disposition of fines and penalties. In fact as indicated above under the proposal, all salaries of the magistrates and clerks will be paid by the State. This may actually result in savings for some municipalities. It is thus fair to conclude that municipal income from fines and penalties for ordinances violations will in no way be affected by the proposed judicial amendment, and that fears of municipal officers in that regard are groundless. It is inconceivable that any future legislature which will of course be familiar with the financial needs of municipalities will vote to take away this source of income from their home communities.

Moreover, since justices of the peace today are subject to no administrative supervision whatsoever, it is often difficult if not impossible to audit their books to determine what has been going on. It is difficult for even the most conscientious justice of the peace, without accounting experience and without supervisory help, to keep his books in order. This will be remedied under the Judicial Amendment. It will be possible for the Supreme Court and the Circuit Courts to establish uniform accounting procedures for Magistrates and to supervise the system. Municipal revenues certainly will benefit by the change from today's haphazard and un-audited methods to a business-like method of accounting in magistrate cases.

What About Giving Up "Home Rule" in the Selection of Magistrates?

Fear has been expressed about the loss of "Home Rule" involved in giving up elected justices of the peace and police magistrates and substituting magistrates appointed by the circuit judges. The use of the term "home rule" in connection with the selection of judicial officers is, of course, a misnomer.

"Home Rule" means the right of municipalities to adopt laws and ordinances relating to local affairs without having first to secure permission from the State Legislature. It has to do with the right of the local law making body to initiate needed local legislation and has absolutely nothing to do with the election of justices of the peace. The laws of the State of Illinois as interpreted by the courts are, of course, uniform and of general application in each County, township and municipality. There can be no "home rule" in the interpretation of that law and arguments based on such slogans are totally irrelevant to the issue involved in judicial reform.

Those who argue that "Home Rule" will be lost, apparently base their argument on the premise that every citizen today has a right to vote "yes" or "no'' on the election of any Justice of the Peace or police magistrate before whom that citizen is likely to be called to appear. They argue that the Amendment will take away this "Home Rule" right. Anyone familiar with justice of the peace practice knows this premise is inaccurate. In traffic violation and criminal cases before justices of the peace today, although the state police and Sheriff's police are supposed to take the offender to the nearest justice of the peace, the police actually tend to channel cases to selected justices of the peace, frequently outside the local municipality, and sometimes at quite a distance. In civil cases, the plaintiff can, and usually does, file his case before a justice of the peace in his, not the defendant's, town, and sometimes for harassment files it in the farthest corner of the County. Talk about the citizen today having a voice in the selection of justices of the peace before whom he may appear is therefore inaccurate.

There is, however, a fear that appointment of magistrates will introduce into local courts judges who are unfamiliar with local conditions and problems. Even if this were the case, it should hardly concern municipal officials whose objective should be the dispensation of equal justice based on the law, to all litigants. As a practical matter, however, this situation is not likely to arise. Magistrates are to be appointed by Circuit Judges who themselves will be elected by popular vote in the judicial district. Any appointments made by such judges elected from their home circuits and familiar with them are sure to reflect local geographic considerations. If, as seems very unlikely, in actual practice the assignment of magistrates proves to be generally obnoxious in terms of geography and local representation, legislative relief could promptly be obtained. In terms of the caliber of individuals appointed, it seems certain that the circuit pudges will make choices of at least equal competence to these popularly elected.

As far as geographic representation generally is concerned, the proposed Judicial Article leaves the number of circuit judges, associate judges and magistrates up to the General Assembly with the proviso that there shall be at least twelve associate judges elected at large in the Cook County Circuit from

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the area outside the City of Chicago. Moreover, there shall be at least one associate judge from each County.²⁰ At least one-fourth of the magistrates in Cook County shall be appointed from and reside in the area outside of Chicago.²¹

In the light of these provisions, and particularly in view of the power retained by the General Assembly, it seems hardly likely that the appointment of magistrates in lieu of elected justices and police magistrates will result in an unequitable geographic distribution of judicial offices.

It should also be borne in mind that contrary to general opinion, the new judicial article will not abolish the office of justice of the peace. What the amendment will do is abolish justice of the peace courts. Though no longer endowed with judicial powers and functions, the justice of the peace will continue to function as a statutory township officer performing such non-judicial duties as are presently imposed upon him by the Township act,²² as well as certain other ministerial duties. While at first glance this would appear to greatly curtail the activity of Justices, studies by the University of Illinois indicate that of the more than 2,000 justices in the State, only one out of eight had more than 25 cases filed before him during a year,²³ so that the duties of seven out of eight present justices will not be substantially affected. The proposed article also provides that justices who will continue to serve as magistrates until the expiration of their current terms, will also continue to perform non-judicial functions for the remainder of those terms.²¹

The assignment of magistrates will be made on the basis of need. It is certain, therefore, that active courts will be maintained in their present location and assignments will be made on the basis of the size of the case load to be handled. This system of assignment will in fact insure prompt access to competent courts without delay.

What Will Be the Effect of the New Article on Local Ordinance Enforcement?

Probably the most important question for municipal officials to determine is what likely effect the new judicial article will have on the prosecution and enforcement of municipal ordinances. Instead of bringing ordinance violation cases before a local justice of the peace or the police magistrate, such actions will in the future be brought before a Circuit court magistrate sitting in a local courtroom. A careful consideration of present procedures as compared with that established under the new article leads inevitably to the conclusion that in this area the municipalities will benefit greatly by the adoption of the new judicial system.

Intensified ordinance enforcement programs now being carried out by many municipalities, particularly in the area of zoning and building cases, have demonstrated the weaknesses of the justice of the peace and police magistrates courts. Municipal

21. Ibid, Section 12.

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prosecutors have been faced with dilatory tactics involved in changes of venue, continuances and jury demands arising out of the provisions of the Justices and Constables Act.²⁵ While these practices are inherent, and in fact are necessary elements in any judicial system, the opportunity for abuses are manifold in justice of the peace courts. The irregular court schedules, the fact that the judges usually have other fulltime jobs and the difficulties involved in obtaining juries at the last moment all combine to permit defense tactics which frequently delay and thus obstruct justice.

Moreover, once a trial is commenced, the municipal prosecutor may find himself deprived of his most important weapon, the force of law behind the ordinance he is seeking to enforce. Under the provisions of the Justices and Constables Act, the jury may not be instructed as to the law by the justice (or police magistrate), except as to the form of the verdict.²⁶ Thus a lay jury becomes the judge of the law as well as of the facts. Even though the municipality may prove its case beyond the slightest doubt, the judge is forbidden to explain the law to the jury and a judgment of not guilty may result since there is no such thing as a directed verdict or a judgment notwithstanding the verdict. This is especially possible if a skilled defense attorney has taken a change of venue from the municipality affected and has chosen his jury carefully. Appeals to the emotions of the jury thus take the place of law. This perversion of the jury system is particularly possible in zoning and building cases or other instances where it can be made to appear that the municipality is "persecuting" the defendant or "ganging up" on him. In such instances a trial by jury in a justice court may be a most effective method to obstruct justice and defeat the legitimate efforts of the municipality to enforce its ordinances. Under the proposed judicial article, magistrates of the circuit court will preside over courts of record where traditional court procedures will be followed and juries will be judges of the facts and not the law as well. Juries will be impaneled in a systematic manner rather than picked off the streets by the Constable. The Circuit court will sit according to a regular schedule and not at the convenience of the justices of the peace. The Civil Practice act will apply rather than the informal procedure of the justice court. In short, the municipality will receive the benefits of an efficient judicial proceeding where the law will prevail while the defendant will be accorded all the protection traditionally available under our system of justice.

Another weakness of the justice court which will be corrected under the new article is the elimination

26. Ibid, § 51.

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of the trial de novo on appeal. Under the present system, either party may appeal the judgment of a justice or police magistrate court to the Circuit court (or the Criminal court of Cook County in ordinance violation cases). On appeal, the case is tried de novo; that is, a completely new trial is held. This, of course, means that the municipality is put to the expense and delay of multiple trials. After an appeal is taken, the case goes to the regular calendar of the Circuit court or Criminal court and is subject to the delays which now characterize the overcrowded dockets in our more populous counties and which the judicial amendment is designed to cure. Whatever benefit may be derived from the theoretically "speed" procedure of the Justice Court is thus lost. The ease and low cost of perfecting an appeal makes appeals popular, especially in the case of more serious violations.

Moreover, municipal attorneys are finding that the serious ordinance violations cannot be successfully dealt with in proceedings before justices or police magistrates. Under law, the maximum penalty provided for ordinance violations are fines which may not exceed $200 for each offense. Maximum fines are seldom levied and such fines alone often are not sufficient punishment or deterrent of future violations, especially in cases of building or zoning violations where illegal operations can yield income far in excess of the fines imposed. Justices and police magistrates have no "equity" powers. That is, they cannot issue injunctions or other court orders to effectively stop future violations, or compel the restoration of illegally used premises to a conforming status. The legislature has recognized this problem by giving specific authority to municipalities to secure injunctions and other equitable relief from the Circuit court in building violations and zoning cases.²⁷ While such procedures are a step forward in enforcement technique, they mean that the municipality gets involved in the delays and frustrations of our present antiquated court system. If, as seems certain, ordinance enforcement in the future will depend more and more on equitable relief, a new and effective court organization which will afford quicker and more economical disposition of litigation will be of major importance to municipalities. Such a system will most certainly be achieved under the proposed judicial amendment.

Another aspect of the present judicial organization which has been detrimental to municipalities has been the widespread use of masters in chancery in cases involving municipalities. In Cook County, for example, almost every zoning case is referred to a master and the practice is prevalent in other counties as well. Masters hearings have a tendency to drag on interminably and masters fees and expenses, even if the litigation is successful, frequently run into thousands of dollars. The tremendous expense of defending cases through masters hearings which may stretch on for years has, perhaps understandably, deterred some municipalities from vigorously enforcing and defending their zoning ordinances. Under the proposed judicial article, the office of mastery in chancery is abolished,²⁸ thus eliminating this cause of additional expense and delay to municipalities in the legitimate enforcement of this ordinance.

Even when masters in chancery are not involved, municipal cases like all others in our present court system have a tendency to drag on and on despite the diligence of counsel. Matters such as personal injury suits, tax objections and the like may extend over changes in municipal administrations and attorneys, and leave unsettled for long periods, matters which are of vital concern to the municipality. The long unnecessary delays are frequently difficult to explain to the citizen-constituent and may discourage action which needs to be taken for the public welfare.

It would thus appear that the greatest benefit to municipalities from the new judicial article will be the elimination of much of the delay and expense which arises from our present court system. It will provide needed reforms in the matter of ordinance enforcement and enable the municipality to more effectively defend the interests of its citizens in the courts. A more efficient and modern court system will inevitably be of substantial assistance to efficient municipal administration.

28. Proposed Judicial Article, Section 9.

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